Secretary, Department of Communities and Justice v Stewart

The Secretary, Department of Communities and Justice (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the Deputy President concerning the calculation of pre-injury average weekly earnings for a worker. The dispute centred on whether a period of absence from work due to an injury, for which the worker received workers compensation payments, constituted a "period of unpaid leave" under the relevant legislation.

The Court was required to determine the proper interpretation of "unpaid leave" as defined by clause 2(3)(a) of Schedule 3 to the *Workers Compensation Act 1987* (NSW) and regulation 8E of the *Workers Compensation Regulation 2016* (NSW). Specifically, the issue was whether a period of incapacity for which a worker received statutory compensation payments could be characterised as "unpaid leave" for the purpose of calculating their pre-injury average weekly earnings.

The Court of Appeal allowed the appeal, finding that a period of absence due to work-related incapacity, even if compensated by workers compensation, does not constitute "unpaid leave" in the statutory sense. The Court reasoned that the ordinary meaning of "unpaid leave" implies a voluntary absence from work with the employer's consent, where no wages are paid. This contrasts with a period of incapacity where the absence is involuntary and the worker receives statutory compensation, not wages. Consequently, the Court set aside the Deputy President's orders and made new orders revoking the Certificate of Determination and fixing the relevant earning period for calculating pre-injury average weekly earnings. The notice of contention was dismissed, and there were no orders as to costs.